The UK has challenged its legal exclusion from three EU border measures with a security dimension: the creation of Frontex (the EU’s external border agency discussed below); EU measures on biometric passports and the decision allowing police services access to data in the EU Visa Information System. From 2000 to 2005, the UK opted into a number of laws relating to this. POLICY PRIMER: The UK, the Common European Asylum System and EU Immigration Law POLICY PRIMER: The UK, the Common European Asylum System and EU Immigration Law THE MIGRATION OBSERVATORY WWW.MIGRATIONOBSERVATORY.OX.AC.UK PAGE 4 migrant’s lives. Wiener A. Geddes A. Whilst prohibiting the employment of those without permission to work, the Directive also protects some of their labour rights, notably the right to back-pay. “Report to Parliament on the Application of Protocols 19 and 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) in Relation to EU Justice and Home Affairs (JHA) Matters (1 December 2009 – 30 November 2010).” Presentation to Parliament, London, January 2011. How does the UK engage with EU Immigration Law? Refugee Qualification Directive: Council Directive 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted  OJ L/304/12. In effect, the UK cannot expect to participate in border control/enforcement measures which are framed as ‘Schengen-building’ without adopting the underlying rules on border crossings first. The common asylum and migration policy must work. Prior to the Treaty of Amsterdam (1999), the EU set up the Dublin system for allocation of responsibility for processing asylum claims, and adopted several non-binding resolutions on asylum matters. Under the 1951 Refugee Convention and international human rights law, states’ obligations of non-refoulement apply at the states’ borders and sometimes extraterritorially (Goodwin-Gill 2011). This is the very point of “take back control” after all. Enhanced border controls on land have resulted in a renewed influx of irregular migrants by sea and the UK also cooperates in a number of Frontex Operations at sea. However, EU leaders have not agreed a common asylum and immigration policy within the EU. Eurodac database – Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention  OJ L316/1. When it comes to tackling the European asylum and refugee crisis, Britain left Europe years ago.. Under international law there is a duty to render assistance to persons in distress at sea, however there is only a requirement to take those rescued to a place of safety. Dublin Regulation: Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national  OJ L50). In January 2011, the Grand Chamber of the European Court of Human Rights held that it would violate Article 3 EHCR (the right not to be subjected to torture, inhuman or degrading treatment) to return asylum seekers to Greece (MSS v Belgium and Greece (2011) 53 EHRR 2). This Migration Observatory is kindly supported by the following organisations. While the EU harmonisation exercise established only minimum standards and leaves Member States considerable leeway to do their own thing, writing refugee law into EU law brings with it other EU law doctrines and (since Lisbon) entails a full role for the Court of Justice of the European Union (CJEU) in Luxembourg in asylum law and policy. So far, a gap still persists between rhetoric and reality in implementing proper procedures to protect human rights, such as a lack of independent oversight (Crépeau 2013). Britain, the EU and Migration Policy.”, Goodwin-Gill G. “The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement.”, Guild E. and D. Bigo. Prior to the Treaty of Amsterdam (1999), the EU set up the Dublin system for allocation of responsibility for processing asylum claims, and adopted several non-binding resolutions on asylum matters. The outsourcing of asylum is a type of migration policy pursued by the countries of the European Union, it consists of relocating the reception and accommodation of asylum seekers and the processing of their asylum applications, in places near the borders of the EU or in countries outside the EU, from which asylum seekers originate or through which they pass. This policy primer examines the UK’s selective participation in the Common European Asylum System, and EU immigration law. The Migration Observatory informs debates on international migration and public policy. There is still a great deal of disagreement among the Member States over the design of a new asylum system. Despite some improvements, the European Ombudsman still found Frontex’s human rights protection lacking (European Ombudsman 2012). Moreover, the UK does participate in the policing and security aspects of Schengen. Moreover, the new government’s reluctance to engage with the reforms to EU asylum measures may also undermine its position when seeking to use the Dublin system. The UK and Denmark both secured opt outs from various parts of EU law, including on asylum and immigration measures. 2 Further to the provisions of the Amsterdam Treaty, at Tampere, in October 1999, the European Council agreed “to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention…”. House of Lords European Union Committee. From 2000 to 2005, the UK opted into a number of laws relating to this. The government expressed ‘grave concerns’ about allowing asylum seekers to work after six months in the absence of a decision (nine in the final adopted version); restrictions on the ability to detain asylum seekers in exceptional circumstances; and limits to fast-track procedures. In particular, the reform provides for crisis-prevention and cooperation measures between Member States, places limits on detention of asylum seekers, and prevents transfer of a person where there is a real risk of violating a fundamental right. POLICY PRIMER: The UK, the Common European Asylum System and EU Immigration Law POLICY PRIMER: The UK, the Common European Asylum System and EU Immigration Law THE MIGRATION OBSERVATORY WWW.MIGRATIONOBSERVATORY.OX.AC.UK PAGE 4 migrant’s lives. On 26 October 2004, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) was established. leave the UK. The failure to opt in to EU measures clearly diminishes migrants’ and refugees’ rights in the UK, in particular as regards their rights to move within the EU. The UK has opted in to some of the EU measures which aim to combat ‘illegal immigration’, including the Carriers Sanctions Directive (2001). However, where an EU/EEA national is subject to deportation action or they are not exercising treaty rights and removal is being considered, this will impact on the child. The commissioner, a former employment and integration minister, also said she would like EU monitoring to prevent illegal pushbacks of asylum seekers at the EU border. The Amsterdam Treaty (1997) marked a decisive shift on EU competence over asylum, with the EU becoming competent for the first time to adopt binding EU law in this field, with the aim of establishing a Common European Asylum System (CEAS). The UK only has observer status on the Frontex Management Board, yet it does contribute to practical cooperation and has been involved in several joint operations. 2,932 asylum applications were allowed at appeal stage, and; 3,560 grants of protection were made through resettlement schemes. Asylum is a fundamental right; granting it is an international obligation, first recognised in the 1951 Geneva Convention on the protection of refugees. The UK participates selectively in EU asylum policy. Table 2: Other EU asylum and migration measures. Accordingly, Italy’s push-backs were condemned as a violation of both Article 3 ECHR (as it exposed the migrants in question to risks of inhuman and degrading treatment) and Article 4, Protocol 4 prohibiting collective expulsions (Hirsi Jamaa v Italy (2012) 55 EHRR 21). In the fields of external border controls, asylum and migration, Article 80 of the Treaty on the Functioning of the European Union (TFEU) implicitly recognizes the existence of such common goods and the challenges related to their effective provision, by establishing solidarity and fair sharing of responsibility between the Member States as the governing principle for relevant common policies. The EU will also put more attention on taking refugees from non-EU countries via resettlement programmes. This trend continues as the UK chose not to opt in to several CEAS recasts enhancing the position of asylum seekers. As such, the best interests of the child must be ... Asylum Policy EEA / EU’ 3.0 Asylum The second phase of legislation making up the CEAS has now been agreed. Starting out with a modest coordinating role between national authorities, Frontex now has a major operational role in practice. E: firstname.lastname@example.org, T: +44 (0)7500 970 081 This permits the EU to undertake activities and conduct common policy, but does not stop Member States exercising their own competence in these areas, which has severely limited the EU’s consolidation and coordination Carriers Sanctions Directive: Directive 2001/51/EC supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985  OJ L187/45. A similar case is currently pending before the Grand Chamber of the European Court of Human Rights in Strasbourg (Tarakhel v Switzerland App No 29217/12). The authors would like to thank Professor Elspeth Guild and Professor Valsamis Mitsilegas for immensely helpful comments. The European Union is reassessing its common asylum policy after a spate of deaths from migrants trying to cross the Mediterranean Sea from Africa. Prior to Brexit, the UK was linked to a series of EU military structures including the European Defence Fund, Common Security and Defence Policy (CSDP) and t he European … Initial decisions on asylum applications often take place in a different year to that in which the application was made. Blue Card Directive: Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment  OJ L155/17. Section 5 examines immigration of so-called ‘Third Country Nationals’ (TCNs), from outside into the EU, where the EU is also competent to develop a common immigration policy. However, that policy “shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed”. However, we are not persuaded that this Directive delivers the strong returns regime that is required for dealing with irregular migration. The asylum pact (officially called the "New Pact on Migration and Asylum") is meant to reform the EU's overburdened and fragmented asylum system. Does the UK have more asylum-seekers than most countries? Although the UK has long been committed to an internal market, it did not become a member of the Schengen system for the abolition of internal border controls on intra-EU movement. Under the Schengen Protocol, the UK may “request to take part in some or all of the provisions of this acquis“. Refugee Qualification Directive (recast): Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted  OJ L/337/9. Asylum formed part of the Schengen system, and was for many years subject to intergovernmental cooperation at EU level. Frontex, based in Warsaw, has been operational since 2005. The UK is required to provide for effective access to justice for those seeking to vindicate EU rights (Case C-279/09 DEB  ECR I-13849). Concerns about Frontex at a structural level have also been raised in terms of a lack of transparency, unclear responsibility and accountability, and a lack of democratic scrutiny, particularly of agreements with third countries (PACE 2013). Jennifer Rankin in Brussels Thu 10 Sep 2020 13.00 EDT 96 A senior EU official has said Europe’s failure to agree a common migration and asylum policy … Despite low expectations, Johansson said she was optimistic about finding a compromise on this “very, very difficult exercise”, citing the agreement on the coronavirus recovery plan that had sharply divided member states. Following the disastrous fire at Moria, the European commission has promised to fund the transfer of 400 lone children to the Greek mainland, and it is sending a ferry to shelter the most vulnerable people. The UK has not opted in to any of these immigration directives. In particular, the UK alleges that a number of reforms enhance the rights of all asylum seekers regardless of the validity of their claims. “Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex.” European Ombudsman, Strasbourg, 2012. The EU’s priorities regarding border control focus on the securitization of external borders though increasing technological surveillance (Crépeau 2013). The EU has been setting up a Common European Asylum System for the last 20 years or so. What is Frontex? Furthermore, in December 2013 the European Border Surveillance System (EUROSUR) entered into force for 19 Schengen countries and will apply to the remaining 11 from December 2014. In the year ending September 2020, the UK received 31,752 asylum applications from main applicants only. In accordance with the EU’s so-called Area of Freedom, Security and Justice, as specified in Part 3, Title V of the Treaty for the Functioning of the European Union (TFEU), the EU enjoys the competence to ensure the absence of internal border controls on persons and to frame a common policy on asylum, immigration and external border controls. Asylum Procedures Directive (recast): Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection  OJ L/180/60. Amongst other criteria, TCNs require a minimum income, language skills and knowledge of life in the UK. In1997 in order to speed up progress towards common EU policies on asylum and immigration matters the European Council agreed, as part of the Treaty of UK courts have also made important rulings on the Reception Conditions Directive, clarifying the right to work of asylum seekers who have been awaiting decisions in the UK beyond the one-year period specified in the Directive (ZO (Somalia)  UKSC 36). Family Reunification Directive: Council Directive 2003/86/EC on the right to family reunification  OJ L 251/12. Admission of Third-Country Nationals to the EU Week 3. The Common European Asylum System (CEAS) was set up to create a fair and efficient common asylum policy across the EU. “Borderline – The EU’s New Border Surveillance Initiatives.” Heinrich Böll Foundation, Berlin, 2012. “Precarious Lives: Experiences of Forced Labour among Refugees and Asylum Seekers in England.” Full Research Report, University of Leeds, July 2013. UK and Denmark and the Common European Asylum System. 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